People v. John, 36 N.Y.S.3d 902

On July 15, 2009 a 12‑year‑old girl in Yonkers was approached by defendant (47, non‑citizen); defendant touched her shoulder and buttocks and made sexually suggestive comments. Defendant gave a police statement admitting the touching.
Defendant was arrested, charged with forcible touching, sexual abuse (2nd degree), and endangering the welfare of a child; he pleaded guilty in City Court on Nov. 1, 2010 to endangering the welfare of a child in satisfaction of all charges.
Plea terms: three years’ probation with sex‑offender conditions, permanent order of protection, $250 in fees; defendant signed a misdemeanor conviction waiver that warned non‑citizens that guilty pleas may result in deportation/exclusion. A Malayalam interpreter was present at plea.
In Jan. 2013 defendant moved under CPL 440.10/440.30 to vacate the conviction, claiming ineffective assistance of counsel for allegedly incorrect or absent immigration advice (citing Padilla v. Kentucky). He also asserted actual innocence. His son submitted a statement about translation and consultations with immigration attorneys.
City Court denied relief, finding contradictions in affidavits, no evidence that deportation proceedings had commenced, no documentation of immigration counsel’s advice, and that defendant received meaningful representation given the strong evidence against him. The appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to advise about deportation/immigration consequences violated Padilla and constituted ineffective assistance	Padilla requires counsel to advise when deportation consequences are clear; relief warranted because counsel allegedly said there would be no immigration consequences	Counsel failed to warn or misadvised defendant about deportation; had he known, he would not have pled	Padilla does not apply because deportation consequences here were unclear/uncertain; no relief granted
Whether defendant established prejudice from alleged deficient advice (Strickland prong two)	Defendant: he would have gone to trial and avoided conviction/deportation if properly advised	People: no evidence deportation proceedings began; plea produced advantageous result given strong case	No prejudice shown; defendant failed Strickland’s prejudice prong and New York’s fairness/meaningful‑representation standard
Whether defendant’s signed waiver and surrounding record defeat the claim	People: signed waiver warned of possible deportation, and record shows interpreter and plea colloquy; strong admissions and police statement	Defendant contends counsel’s oral assurances overrode waiver and he did not understand consequences	Court relied on waiver, conflicting affidavits, and strong case evidence to conclude defendant knew there was potential immigration risk and received meaningful representation

Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise when deportation consequences are "truly clear")
Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test: performance and prejudice)
People v. Rampersaud, 121 A.D.3d 721 (App. Div. 2014) (recognizing effect of plea waivers regarding immigration warnings)
People v. Marino‑Affaitati, 88 A.D.3d 742 (App. Div. 2011) (no relief where movant fails to show deportation proceedings commenced)
People v. Lujan, 114 A.D.3d 963 (App. Div. 2014) (New York standard evaluating meaningful representation and overall fairness of proceedings)
People v. Benevento, 91 N.Y.2d 708 (1998) (factors for assessing effectiveness of counsel and plea fairness)